Going Nowhere

For POW’s, the Bush Administration has Effectively Rewritten the Geneva Convention

On September 6th, more than three months after George W. Bush announced the planned closure of the infamous Guantanamo Bay detention center, he acknowledged that 14 of the most notorious terror suspects – the alleged masterminds of the 9/11 attacks – were to be transferred to the Cuban prison to face eventual trial.

On the same day, Bush presented a bill to Congress, the Military Commissions Act of 2006, which met stern opposition there and harsh criticism from human rights organizations because of its proposed adaptation to Common Article 3 of the Geneva Conventions.

After a week of heated debate, the Bush administration and Congressional Republicans reached a compromise, while legal experts and human rights activists cite paradoxes, and unfair clauses.

The bill was passed in the House of Representatives on Sept. 27, and by the Senate the next day.

Following months of denial by the administration and the agency, the President, for the first time, acknowledged the existence of secret CIA detention centers around the world, and the use of “alternative” interrogation techniques, which he did not disclose because “it would help the terrorists to learn how to resist questioning … But I can say the procedures were tough, and they were safe, and lawful, and necessary.”

The recognition of CIA secret prisons, however, was followed by a resolute defense. Although Human Rights Watch, Amnesty International and others have documented gross human rights violations, Bush sought to justify the overseas prisons and hinted at an intention to maintain the system by saying that “[the] CIA program for questioning terrorists will continue to be crucial to getting lifesaving information.”

The president’s support of C.I.A. techniques “shows an unwillingness to go the distance in stopping torture,” Leonard Rubenstein, executive director of the Boston-based Physicians for Human Rights, told The Boston Globe on Sept. 7.

The CIA has mainly detained terror suspects taken on battlefields from Afghanistan to Iraq. But agents have also stopped suspected terrorists on the streets and then transferred them, with no recourse, to secret prisons.

“[The U.S.] risks becoming a totalitarian state, if we lock people up without due process,” said Dr. Gregory Weeks, Head of the International Relations Department at Webster University Vienna and an American citizen.

Dr. Weeks sees the unprecedented move to acknowledge a secret program by the Bush administration as a possible move to thwart attacks by Democrats, who would have probably found out about the transfer of the 14 terror suspects and used that as a leverage in the run up to the off-year elections in November.

In the whole array of provisions in the revised bill, the CIA detention program and the so-called “extraordinary renditions” remain untouched.

The secret prisons are run and operated by the CIA, and have been reported to be located in several countries throughout the Middle-East and Eastern Europe. An extensive list of countries, including Afghanistan, Iraq, Romania, Poland, Egypt, Morocco, Jordan, Pakistan and others, have been reported to cooperate with the CIA in setting up the so-called black sites. In the process of “extraordinary rendition,” alleged terror suspects have been sent to secret prisons in countries with noted records of torture.

The U.S. government has previously assured the American public that it does not authorize the transfer of detainees to such countries without obtaining “diplomatic assurances” that detainees will not be tortured.

The report by the U.N. Committee against Torture, however, criticized the U.S. government’s reliance on unenforceable “diplomatic assurances,” while Amnesty International and Human Rights Watch have reported on many instances of detainee abuse.

During the press conference on Sept. 6, Bush credited the detention centers and the interrogation of terror suspects with thwarting attacks and saving innocent lives. The president discredited fierce criticism of the CIA’s so-called “extraordinary rendition” practices by human rights organizations and governments. The criticism has focused mainly on using torture during interrogation and on the suspension of rights of due process.

“The United States does not torture,” Bush said on Sept. 6 in his acknowledgement of the secret CIA prisons. “It’s against our laws, and it’s against our values. I have not authorized it – and I will not authorize it.”

Many observers find this and similar statements puzzling, if not deliberately misleading.

“President Bush’s speech raises more questions than it answers,” said Reed Brody, the European Press Director and Counsel for Human Rights Watch, in an email to The Vienna Review on Sept. 18. “President Bush did not say exactly what interrogation methods had been used … Worse, the president justified the use of torture and ‘disappearances’ saying that the CIA program ‘has given us information that has saved innocent lives’ and pointedly reserved the right to use these practices in the future.”

On earlier occasions, the Bush administration has maintained that treaty obligations deriving from the Convention against Torture to refrain from “cruel, inhumane, and degrading treatment” apply to U.S. military personnel only, while non-military personnel interrogating non-U.S. citizens abroad are exempt.

In May 2006, a report issued by the U.N. Committee against Torture, disputed such claims.

Bush has described the Geneva Convention Common Article 3, as being “so vague that it demands clarification.” Critics see this defense as disingenuous.

“That’s a dodge,” wrote The New York Times in an editorial on Sept. 17. “What he really wants is congressional authority to go on doing things to prisoners in CIA jails that are clear violations of international rules. He also wants Congress to rewrite the War Crimes Act, which makes it a crime to violate the Geneva Conventions.”

Before negotiations had begun with the Republican senators, President Bush threatened to block any legislation that did not meet his demands.

“Congress has got a decision to make,” he said during a press conference on Sept. 15, appearing to shift responsibility for the increasingly unpopular program from his own shoulders to Congress. “You want the program to go forward or not? I strongly recommend that this program go forward in order for us to be able to protect America.”

The tribunals would have the right to use evidence obtained through coercion and exclude defendants from proceedings when classified information is presented against them, while Common Article 3 of the Geneva Convention – which outlaws “outrages upon personal dignity” and “humiliating and degrading treatment” – would be redefined.

By rejecting the initial proposal, the Senate committee led by Sen. John McCain arguably forced the Bush administration to back down and negotiate the disputed parts.

The senators, backed by Colin L. Powell, former Chairman of the Joint Chiefs of Staff and Secretary of State in President Bush’s first term, have said that their version of the bill would provide fair trials and meet the requirements set out by the Supreme Court decision in Hamdan vs. Rumsfeld, which struck down Bush’s original plan, and preserved clauses in Common Article 3 of the Geneva Convention which prohibit torture.

“The draft military commission legislation proposed by President Bush would allow the use of statements obtained under coercion, and would allow the accused to be convicted on the basis of secret evidence,” said Brody of the Human Rights Watch. “With these and other serious failings, the proposed legislation lacks basic procedural protections necessary for a fair trial.”

Although the new bill on interrogation and trials of terror suspects was hailed by critics for letting defendants see all the evidence against them, it would allow unfair treatment of lower ranking detainees. It also does not entirely rule out the use of hearsay evidence and statements obtained through coercion, leaves room for harsh interrogation methods, and broadens the administration’s authority to detain a wider range of suspects both in the U.S. and abroad by adding those who have “supported hostilities” to the category of “enemy combatants.”

The final legislation has left many disappointed, even though, as Executive Director of Human Rights Watch Kenneth Roth pointed out, “it rejected some of the Bush administration’s most outrageous proposals.”

“The only thing that was actually accomplished was that the politicians got to announce the existence of a compromise,” said Eric M. Freedman, a law professor at Hofstra University and the author of a book on habeas corpus, in an interview with The New York Times on Sept. 23. “But in fact, most of the critical issues were not resolved.”

According to the new bill, minor figures and detainees held abroad will still not have the right to challenge their detention in court. Top terror suspects, like Khalid Shaikh Mohammed, on the other hand, enjoy more rights in that direction.

“From now on, CIA interrogators who use abusive practices like water boarding, hypothermia and extended sleep deprivation could face prosecution if the government chooses, but victims of abuse are denied access to the courts,” Roth said before the vote.

“The bill effectively rewrites key pieces of the Geneva Conventions and takes away the most fundamental right of detainees to be heard,” he said. “It should be rejected as a whole.”

With the bill passed in the House and the Senate, the representatives go into the recess ahead of the Nov. 7 elections.

And hundreds of present and future detainees in C.I.A. or military custody are going no where, having had their rights officially reduced as the part of the Bush administration’s “war on terror.”

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